All rise for the Judge? Tribunal reform on the books
Simon Osborne looks at the context and content of the Tribunals, Courts and Enforcement Act 2007.
The Tribunals, Courts and Enforcement Act 2007 received Royal Assent on 17 July. The Act provides a legal basis for the eventual restructuring of the administration of the tribunals system. Some changes promise to give a distinctly new look, and possibly a new feel, to the tribunal process. The actual change process will, it is understood, be introduced over a two-year period and in particular from October 2008.
Context - the origins of the Act
The Act is the fruit of a 2001 report reviewing tribunals and a response to the report in the form of a Government White Paper of 2004. The report - Tribunals for Users, One System, One Service, usually referred to as the Legatt report - had as a central recommendation the centralisation of tribunal administration.
The White Paper, Transforming Public Services: Complaints, Redress and Tribunals, was published in July 2004. It set out plans for a unified tribunals service. Also outlined were plans for 'proportionate dispute resolution' aimed at avoiding the need for full hearings, and for referring to legally qualified panel members as judges (see Bulletin 182, p. 4 for full details).
The Tribunals Service promised that the centralisation of administration, 'along with the introduction of a new hearing centre network [and] administrative support centres', would ensure improved services for appellants.1
The Act creates a legal framework for the introduction of the changes recommended by Legatt and in particular by the White Paper. Most important amongst its provisions are:
- The creation of 'First-tier' and 'Upper' Tribunals to unify various current tribunals (including the current social security appeal tribunal and Commissioner appeals), headed by 'judges' - section 3 of the Act.
- The creation of 'chambers' within each of the Tribunals, creating distinct types of Tribunal jurisdiction - section 7.
- A new office of Senior President of Tribunals to head the new unified judiciary, and whose duties include the development of 'innovative methods of resolving disputes' - section 2.
- A limited judicial review function for the Upper Tribunal - sections 15 and 18.
- The creation of new Tribunal Procedure Rules - section 22 and Schedule 5.
Various other changes concern administrative powers to transfer jurisdictions to the new Tribunals, and provision of administrative support to them under powers exercised by the Lord Chancellor.
Regarding the new Tribunals, the Explanatory Notes to the Act indicate that these are broadly expected to be similar to the current social security tribunal and Commissioner appeals, including in matters like tribunal composition. However, section 3 refers to 'judges' and the Notes say that the legally qualified panel members will be called 'judges of the First-tier Tribunal'.
The 'chambers' provided for by section 7 are to impart jurisdictional boundaries in the Tribunals. The Explanatory Notes confirm that 'it will not be possible for all judges and members to deal with all kinds of case'. It is understood that social security appeals will be part of a chamber called Social Entitlement.
Under section 9 of the Act, both Tribunals will be able to review their own decisions to correct accidental errors, amend reasons or set-aside. The Explanatory Notes say the intention is that 'decisions that are clearly wrong' can be changed without the need for a further appeal.
The provision for Tribunal Procedure Rules at section 22 allows for rules to be created regarding 'practice and procedure' in the tribunals. They will cover matters such as time limits, repeat applications, hearings, proceeding without notice to one of the parties, the giving and taking of evidence (including on oath). Also they may deal with costs and expenses, a topic which under section 29 is 'in the discretion of the Tribunal'. The Explanatory Notes confirm that, 'it is not intended that these provisions [i.e. costs] will apply in all jurisdictions', and the Government confirmed to CPAG during passage of the Bill that costs in social security appeals were not intended. However, CPAG have recently written to the Tribunals Service for confirmation of that position following the passing of the Act.
Context - implementation of the changes
Although Commencement Orders have begun to appear,2 no substantive change has yet taken effect, and it was expected that October 2008 would see the first of those. Social Security and Child Support Appeals President Robert Martin told a NAWRA meeting in September that consultation on change in social security appeal tribunals was expected to begin in late September or early October 2007 (although at the time of writing there was no news of this). The current eight processing centres would be reduced to six, with a 'pathfinder centre' due to be set up in Birmingham in October 2008. There will also be a reorganisation of venues to create 'multi-jurisdictional' centres which will deal with all types of appeal. Regarding new Procedure Rules, a committee was to be established to draft them up.
The 'innovative methods of resolving disputes' referred to in section 2 are already being tested in the form of the Alternative Dispute Resolution trials that have been taking place in areas covered by the Sutton and Cardiff offices of the Tribunals Service. In the pilots, in AA/DLA appeals appellants have the choice to opt for a scheme in which a District Chair contacts the party with the perceived weakest case and the weaknesses explained - although they remain able to continue with the appeal if they wish. The pilots were introduced in August and expected to last six months with evaluation to follow.
It is not yet known how official literature will refer to the new Tribunals. Will legally qualified panel members really be called 'judges'? Will some evidence be taken on oath? And will appeals take on a distinctly more formal and adversarial flavour as a result? We don't yet know. It is to be hoped that the Tribunals Service consult on all these questions as part of the wider consultation process.
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